Monday, 31 December 2012

The Arab Spring's first constitution

Dr Larbi Sadiki is a Senior Lecturer in Middle East Politics at the University of Exeter, and author of Arab Democratization: Elections without Democracy (Oxford University Press, 2009) and The Search for Arab Democracy: Discourses and Counter-Discourses (Columbia University Press, 2004).

The new Egyptian constitution eliminates omnipotent presidency - the president is allowed only one re-election.

If Morsi wins the next presidential elections, he will not be president for more than eight years [EPA]

Al Jazeera - 30 Dec 2012

Almost invariably Western media have continued to describe the newly adopted Egyptian constitution "controversial". As far as institution-building is concerned, Egypt's fifth constitution is not devoid of positive content in terms of the rights enshrined in the new document.

What are some of the key positives in Egypt's new constitution?

First, a word is in order on aspects that should be avoided in Libya and Tunisia.

Disenfranchising tactics

Egypt's road to institution-building is illustrative of this most populous Arab state's status as a place of democratic explosion over the past 18 months: two referenda and three multi-stage elections, and Egyptians go to the polls again in February 2013 to elect a new parliament under a new constitution. By any standards, this is a democratic debut unparalleled in neighbouring Arab Spring states - Libya, Tunisia and Yemen.

Nearly two-thirds of those who chose to vote endorsed the new constitution. The trend has been there for some time. So far, Islamists seem to be on an upward trend, prevailing in all elections for the lower house (People's Assembly), the lower house (the Shura Council), and two referenda, begun in March 2011 with the mini-constitution adopted temporarily under the backing of the now dissolved Supreme Council of the Armed Forces (SCAF).

The figures illustrate the polarisation in Egypt - and this is a common denominator in all Arab Spring societies. Revolutions cannot be expected to deliver harmony from the outset. It is a quality that must be earned through inclusive political processes, which are geared towards bridging all kinds of divides, including respecting some of them, confidence-building measures and broad coalitions. Two years is a footnote in the life of a great nation such as Egypt's in the midst of radical transformation. The cure of time is on the side of Egyptians.

Specifically, voter turnout was less than 33 percent of Egypt's total of 52 million registered voters. To an extent, this is disheartening for Arab Spring democracy-building. Broad endorsement should, ideally, inaugurate democratisation, especially when it comes to the constitution being the key document that will govern political life. The responsibility for this flagrant lack of participation in the country famous for the phenomenon of "malyouniyya" (million strong protests) must be shouldered by both the government of the day and the ad-hoc opposition united around rejection of the constitution.

Both have committed disenfranchising mistakes, with more than 33 million registered voters either boycotting the referendum or staying away (nearly one-third often abstains as in previous post-Mubarak elections) over two voting rounds. The government has not allowed enough time for voters to learn a great deal about a long document with 237 articles, some of which are long and written in legal jargon not readily understood by the lay public.

Ideally, extra time should have been given to Constituent Assembly members to iron out problems revolving around disputed articles. President Morsi went for a fait accompli strategy, striking whilst the iron is hot. Of course, there is no guarantee that additional time would have produced a more acceptable document in an Assembly where polemics is rife.

Whilst united in its rejection of a document it viewed with suspicion and as the by-product of Islamist dominance, the opposition was divided over how to proceed: the April 6 Movement preferred participation as the best way to register a "no" vote. Hamdeen Sabbahi and others in the so-called National Salvation Front opted for boycott: several million voters stayed away from the referendum to register angst and primarily protest.

This tactic has backfired and proved its disenfranchising effect perhaps even more than that caused by the government. The "yes" votes for the new constitution were recorded to be 10,693,911 (63.8 percent). Those on the opposite side were 6,061,101 (36.2 percent). It will remain a question without an answer: what if Sabbahi and co pushed for participation and a "no" vote along with the April 6 Movement? Who knows what would have been the outcome if support was garnered for rejection via democratic exercise of voting rights and not just protest and populist mobilisation without political organisation?

In Libya and Tunisia, there are lessons to be heeded so that draft constitutions are allowed sufficient time for public discussion and wide-scale information campaigns so that voters choose which vote to vote regardless of partisan propaganda. Wide endorsement is vital for the inauguration of durable and consensual democratic transitions.

Egypt's new constitution: The promise

The new constitution is the first to eliminate omnipotent presidency. The breed of Mohammed Naguib, Nasser, Sadat or Mubarak is over. Supposing Morsi wins the next presidential elections, he will not be president for more than eight years. Article 226 put to bed the question of president-for-life. The president is allowed only one re-election.

Article 236 comes to cancel all laws and declarations, including the infamous Morsi decree, preceding the adoption of the new constitution. It repeals decrees adopted by SCAF as well as by the president. The only hitch is that the said Article recognises the side-effects of such decrees, especially by the army and notes that they may not be appealed against. Nonetheless, this is a matter open to legal interpretation.

Moreover, given that there are disputed articles, which will occupy legislators in the future, there is a facility for making amendments. Article 217 requires requests for amendment to be initiated either by the president or five elected parliamentarians.

Article 88 speaks to the question of corruption. It makes it mandatory for elected members of Egypt's two chambers to declare their assets and sources of income. This public scrutiny applies to the president and government ministers as stipulated in Article 158. These laws will over the years inspire similar measures not only in Arab Spring states, but the Arab Middle East (AME) more broadly.

Like corruption, political exclusion was an all-pervasive ill in pre-Revolution Egypt. So Article 51 comes to eliminate the excessive bureaucracy that governed the legalisation of associations and political parties. Specifically, it notes that "associations acquire legalisation through notification", cancelling the rigmarole of having to go through impossible processes formerly vetted primarily by the Interior Ministry.

By the way, Article 231 may be read as legalising political exclusion as it bans former ruling party leaders from political work for a 10-year period. This must be accounted for within the local Egyptian context where demand for banning Mubarak's party is popular.

Social justice

Article 14 came to embody the public demand for freedom, dignity and "bread". It commits the state through the instrument of development planning to work towards social justice, solidarity, equitable distribution, consumer rights and workers' rights. Moreover, it promises to "divide development costs between capital and labour" as well as equal sharing of revenue.

The attention paid to wages is novel. Article 14 links wages to production and commits to a minimum wage as a facility to minimise income discrepancies. Even more interesting is the commitment to a maximum wage in civil service positions - something Nasser once promoted in the early 1960s.

Article 15 makes agriculture - in line with millennial Nile traditions - an essential sector of the economy. In particular, it commits to the regulation of use of land in ways that enhance "social justice and protect farmers and farm labourers from exploitation". These articles echo ideals that were once championed by Nasser but never pursued seriously since the late 1970s. Article 16 stresses commitment to enhancing farmers' standard of living and "people of the desert" - an important recognition.

These ideas build on Article 8, which reads that the "state guarantees the means to achieve justice, equality and freedom, and is committed to facilitating the channels of social charity and solidarity".

The law of the land

Article 74 enshrines Sovereignty of the law as "the basis of rule". It stipulates "independence and immunity of the judiciary", affirming them as guarantees for the protection of citizenry's rights and freedoms. Article 75 consolidates this principle, by guaranteeing "the right to litigation" for all citizens.

Equally important, it prohibits grants of immunity outside the law. This speaks to the pre-revolution state of selective justice accorded to the rich and powerful. So does the prohibition of "exceptional courts". And just as law must be administered provided in Article 76 and Article 77, legislators have promoted an important legal value: "A defendant is innocent until proven guilty through legal trial."

The right to defence in all legal trials is guaranteed - "in person or by proxy" stipulates Article 78, affirming legal principles in Article 77. And to close the circle, Article 80 makes the act of encroaching on rights and freedoms granted by the constitution a crime. And a National Council for Human Rights is tasked with reporting such violations to public prosecution.

The media

Article 48 may seem to stumble upon obstacles limiting press freedom such as "requirements of national security and sanctity of privacy", but this is not unique to Egypt. There are no freedoms without limits. In principle, the article guarantees "freedom of the press, printing, publication and mass media". It adds that "the media shall be free and independent to serve the community and to express diverse trends in public opinion... and to sustain rights, freedoms". Moreover, the article prohibits "the closure or confiscation of media outlets" - only by court order - as well as forms of censorships and control.

Sovereign Egyptians… A beginning

The new constitution has consolidated Egypt's transition. What may be missing or disputable may be solved through amendment and through national dialogue featuring right now as the biggest item on the political agenda in addition to the February parliamentary elections.

Egyptians have lots to celebrate and so do the peoples of the Arab Spring who will find in this constitution inspiration as well as food for thought - especially in Libya and Tunisia.

Their new constitution commits the state to provision of safety and equal opportunity for all (Article 9). Equality "without discrimination, nepotism or favouritism" for men and women (Article 5) is now the basis for levelling the playing field. And in the spirit of revolution and "malyouniyyas", Article 50 guarantees the right to peaceful protest and demonstration.

True, the resonance of religion is strong in this constitution. However, there is nothing wrong with this in a country where a majority of Copts and Muslims take faith seriously. Article 44, which bans insult or abuse of religion speaks to an Egyptian specificity. It is not written to contradict with press freedom or that of creativity guaranteed by Article 46.

The new constitution makes the principles of Islamic law legal sources (Article 2); but it grants Christian and Jewish Egyptians full autonomy if matters of personal statues (Article 3). In the bottom line, all find citizenship in the principles of democracy and consultation - and multi-partyism (Article 6) - the glue that binds them as Egyptians.

That is, Egyptians who are in the new constitution are the source of sovereignty. Article 5 states: "Sovereignty is for the people alone and they are the source of authority." Slowly, but surely, the jigsaw pieces of the democratic puzzle are being assembled in Egypt. The Arab Spring is still on track.

Dr Larbi Sadiki is a Senior Lecturer in Middle East Politics at the University of Exeter, and author of Arab Democratization: Elections without Democracy (Oxford University Press, 2009) and The Search for Arab Democracy: Discourses and Counter-Discourses (Columbia University Press, 2004).

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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